Health Rights Impacts by Agrochemical Business: Legally Challenging the 'Myth of Safe Use'

• Author: Carolijn Terwindt, Shaelyn Morrison, Christian Schliemann
• Position: Legal Advisor, European Center for Constitutional and Human Rights (ECCHR), Berlin, DE/Associate, Bragar, Eagel & Squire Law Firm, NY, US./Legal Advisor, European Center for Constitutional and Human Rights (ECCHR), Berlin, DE
• Pages: 130-145

Carolijn Terwindt, Shaelyn Gambino Morrison and Christian Schliemann,

‘Health Rights Impacts by Agrochemical Business: Legally Challenging

the “Myth of Safe Use”’ (2018) 34(2) Utrecht Journal of International

and European Law pp. 130–145. DOI: https://doi.org/10.5334/ujiel.460

UTRECHT JOURNAL OF

INTERNATIONAL AND EUROPEAN LAW

RESEARCH ARTICLE

Health Rights Impacts by Agrochemical Business:

Legally Challenging the “Myth of Safe Use”

Carolijn Terwindt*

, Shaelyn Gambino Morrison† and Christian Schliemann*

The past decades have seen enormous growth in the agrochemical industry. Its pesticides

and fertilisers promise to farmers worldwide an increase in yields and a decrease in labour

input. The expansion of the pesticides industry results in tremendous costs to others – in

the form of chronic illness, acute injuries, and environmental degradation. Such costs are

borne disproportionately by farm and plantation workers in the Global South due to a peril-

ous combination of weak regulation, lack of training and access to information, and meager

resources for protective equipment. Agrochemical companies continue to claim that their prod-

ucts are safe when used correctly by farmers and regulated effectively by the state. Advocates

have attempted to use litigation as a recourse for challenging the agrochemical industry. Civil

litigation against pesticides manufacturers can directly address the injuries suffered from pes-

ticide poisoning, but such lawsuits face a number of challenges and all too often leave workers

and farmers without access to an effective remedy. This article explores the potential of com-

plementary litigation which challenges the harmful sales practices of pesticide companies, as

well as the precautionary principle, as an alternative to protect pesticide users against hazards.

Keywords: accountability; agribusiness; litigation; pesticide poisoning; personal injury;

precautionary principle; right to health

I. Introduction

As the global population increases exponentially, so too does the worldwide demand for food and other

agricultural products. Multinational corporations have seized the opportunity created by this demand to

develop genetically engineered crops and accompanying agrochemicals in order to increase production

while decreasing labour requirements, even though some United Nations experts favour the use of

sustainable, agroecology systems.1 Though this may lower the price of produce for some, the expansion of

the pesticides industry results in tremendous costs for others – in the form of chronic illness, acute injuries,

and environmental degradation. Such costs are borne disproportionately by those in the Global South as a

result of a perilous combination of weak regulation, lack of training and access to information, and meager

resources for protective equipment. Our use of the concept “Global South” in this article is in line with

the conceptualisation in the book International Environmental Law and the Global South, which notes that

‘the terms North and South distinguish wealthy industrialized nations (including the United States, Canada,

Australia, New Zealand, Japan, and the member states of the European Union) from their generally less pros-

perous counterparts in Asia, Africa, and Latin-America’.2 Despite its heterogeneity, the global South shares

a history of Northern economic and political domination, and Southern nations often negotiated as a bloc

(the Group of 77 plus China) to demand greater equity in international economic and environmental law.3

* Legal Advisor, European Center for Constitutional and Human Rights (ECCHR), Berlin, DE. Contact: terwindt@ecchr.eu,

schliemann@ecchr.eu.

† Associate, Bragar, Eagel & Squire Law Firm, NY, US. Contact: gambino-morrison@bespc.com.

1 Meriel Watts, ‘Replacing Chemicals with Biology: Phasing out Highly Hazardous Pesticides With Agroecology’ PAN International

(2015) accessed 10 August 2018.

2 Shawkat Alam, Sumudu Atapattu, Carmen G. Gonzalez, and Jona Razzaque (eds), International Environmental Law and the Global

South (CUP 2015).

3 ibid.

Terwindt et al 131

Agrochemical companies continue to claim that their products are safe when used correctly by farmers and

regulated effectively by the state. Relying on this assumption of safe use, companies continue to export

highly toxic chemicals that have been banned elsewhere, and often fail to adequately label chemicals.

Next to advocacy and lobbying for political and legislative change, advocates have attempted to use

litigation as a recourse for challenging the agrochemical industry. Such litigation can be broadly divided

into two categories: public interest litigation and litigation based on private causes of action. Within the

first category, a sizeable number of cases have been initiated in recent years challenging practices including

aerial spraying in Argentina,4 the approval of public pest prevention and management programmes due

to the lack of adequate analysis of environmental consequences,5 revocation of unconditional registration

of a neonicotinoid that is very toxic to bees in the US,6 or the non-disclosure of company documentation

containing environmentally relevant information submitted to regulatory authorities in Europe.7

In addition to public interest litigation, those affected by pesticides have also opted to pursue civil

litigation. Civil litigation against pesticides manufacturers can directly address the injuries suffered from

pesticide poisoning, but such lawsuits face a number of challenges, elaborated upon in Section IV of this

article, and all too often leave workers and farmers without access to an effective remedy. The number

of successful civil litigation cases is very limited. In the database (“Justice Pesticides” run by several

non-governmental organisations with global reach) of 66 civil litigation cases related to pesticides, only one

fifth are compensation claims for health damages directly against the manufacturer.8

The present article addresses both public and civil litigation challenging (the risk of) personal injury to

pesticides users and their communities. On the one hand, personal injury may occur as a result of pesticides

being marketed in violation of existing safety regulations. On the other hand, personal injury can be seen

even where a manufacturing company has fulfilled regulatory requirements. Health damages in the latter

case provide increasing evidence of the dangerous reliance on the myth of “safe use”. According to the theory

of safe use, pesticides may be applied by farmers and plantation workers without any health risks when appli-

cants follow the prescribed precautionary measures (see Section III below). Market approval is frequently

based on this assumption, whereas in reality pesticide sprayers often fail to implement the precautionary

measures, a situation well known to regulatory authorities and companies alike. Frequently, those applying

pesticides do not even have access to personal protective equipment. While health damages have thus turned

into a foreseeable risk, the distribution of pesticides continues to be based on this assumption of “safe use”.

Using past and pending cases as points of reference, this article highlights the harmful practices of the

agrochemical industry and considers potential litigation avenues for challenging the status quo, in particular

negative health impacts on users and communities. In order to better assess the limitations and chances

of litigation, this article proposes distinguishing between civil personal injury litigation and public litiga-

tion on sales practices. In the examples, the article draws heavily on the research and litigation experience

of the authors in their collaboration with partners in India. The conclusions are based on personal experi-

ence, written accounts of pesticides litigation as well as jurisprudence from Argentina, the United States,

France, Germany, Spain, the UK, and India. This article sums up the challenges of personal injury litigation

and explores the potential of litigation which challenges the harmful sales practices of pesticide companies

as a complementary approach to address negative impacts on the human right to health. As an illustration

of such sales practices, the article addresses the labelling and export of pesticides. In addition, the article

explores the potential of the precautionary principle to challenge the continued reliance on the “safe use”

standard. Section II provides a brief background of the health risks associated with the use of pesticides

and the global players that are at the helm of the agrochemical business. Section III explores the concept

of safe use that underpins the actions of these global players and points out that the assumption of safe

use is much closer to myth than reality. Section IV reviews instances of personal injury litigation and the

4 Cavigliano Peralta, Viviana y otros c/Munipalidad de San Jorge y otros, s/amparo, Juzgado de Primera Instancia de D Juzgado de

Primera Instancia de Distrito en lo Civil, Comercial y Laboral de San Jorge del 10 de junio de 2009, Sala II de la Cámara en lo Civil

y Comercial de la ciudad de Santa Fe del 9 de diciembre de 2009, Juzgado de Primera Instancia de Distrito en lo Civil, Comercial

y Laboral de San Jorge del 21 de febrero de 2011 y nuevamente de la segunda instancia interviniente el 19 de abril de 2012 con

aclaratoria del 16 de junio de 2012.

5 North Coast Rivers Alliance, et al. v. California Department of Food and Agriculture, Case No. 34-2015-80002005, Superior Court of

California, County of Sacramento, Judgment of 8 January 2018.

6 Pollinator Stewardship Council et al, v. US Environmental Protection Agency, United States Court of Appeals for the Ninth Circuit, No.

13-72346, Opinion of 10 September 2015.

7 Case C-442/14 Bayer CropScience SA-NV, Stichting De Bijenstichting v College voor de toelating van gewasbeschermingsmiddelen en

biociden (Reference for a preliminary ruling, Judgment of 23 November 2016)

8 <https://www.justicepesticides.org/en/juridic-cases/?_sfm_case_nature=Civil%20court> accessed 29 August 2018.